




CITATION:
R. v. Stevens, 2011
          ONCA 504



DATE: 20110712



DOCKET: C50860



COURT OF APPEAL FOR ONTARIO



Laskin, Feldman and Armstrong JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Lawrence Stevens



Appellant



John Norris and Brydie Bethell, for the appellant



David Finley, for the respondent



Heard: February 14, 2011



On appeal from the judgment of
          Summary Conviction Appeal Judge Sandra Chapnik of the Superior Court of
          Justice dated July 7, 2009, with reasons reported at 196 C.R.R. (2d) 32, dismissing
          the appeal from the convictions for careless storage of a firearm and
          ammunition entered on July 10, 2006 by Justice Lloyd M. Budzinski of the
          Ontario Court of Justice.



ARMSTRONG J.A.:

INTRODUCTION

[1]

The appellant was convicted on July 10, 2006 of
    four counts of careless storage of a firearm and one count of careless storage
    of ammunition by Justice Budzinski of the Ontario Court of Justice.  He received a suspended sentence and
    probation for 12 months.  He appealed his
    convictions to the summary conviction appeal court.  His appeal was dismissed by Justice Chapnik
    of the Superior Court of Justice on July 7, 2009.  He now applies for leave to appeal and, if
    leave be granted, he appeals to this court.

[2]

The main issue on the appeal is whether the
    search and seizure of the guns and ammunition in the appellants apartment was
    in breach of s. 8 of the
Canadian Charter
    of Rights and Freedoms
.

THE FACTS

[3]

The appellant and his girlfriend, Lourinda
    Beaver, lived in an apartment on Islington Avenue in Toronto.  A dispute arose between the landlord and the
    appellants girlfriend over the failure to maintain the property and Ms. Beaver
    withheld the rent.  The landlord obtained
    an eviction order.  The dispute was
    resolved through mediation and an agreement was entered into on January 5,
    2005.  The landlord agreed not to enforce
    an eviction order if certain payments were made in accordance with a payment
    schedule.  The first payment was due on
    January 14, 2005.  Despite the first
    payment having been paid on time, the landlord, apparently through
    inadvertence, commenced the eviction process by faxing instructions to a
    paralegal firm, which requested the sheriffs office to proceed.

[4]

On February 9, 2005, two sheriffs officers
    attended at the appellants apartment to enforce the eviction order.  They were met at the apartment building by
    the superintendent of the building.  The
    sheriffs officers had been provided with a risk assessment form, which stated
    that there was no risk in respect of the particular apartment.

[5]

The sheriffs officers knocked at the apartment
    door and received no response.  The
    superintendent opened the door with a master key.  When the sheriffs officers walked through
    the apartment, they noticed what appeared to be two gun cases in one of the
    bedrooms.  They did not know if the cases
    contained guns.  They did not touch them.  They also observed an Ontario Provincial
    Police shirt, a police badge from the Prince Edward Island provincial police and
    a bullet-proof vest (without panels).

[6]

After satisfying themselves that the apartment
    was vacant, they signed the eviction order.  They advised the superintendent that they had found firearms on the
    premises and that the police would be called.  The police were called and the superintendent and sheriffs officers
    waited in the apartment for the police to arrive.

[7]

Two police officers arrived shortly thereafter.  One of the police officers testified that
    they believed they were called to the apartment due to a concern that police
    property was present in the apartment.  The
    sheriffs officers explained that they were executing an eviction order and
    told the police about the gun cases.  The
    police decided to open the gun cases.  On
    opening the cases, they found firearms that were not properly stored or locked.

[8]

The superintendent of the apartment building
    changed the locks on the apartment door.

[9]

The more senior officer of the two instructed
    his colleague not to search any further because he intended to contact the
    Major Crime Unit about a search warrant.  Subsequently three officers from the Major Crime Unit arrived at the
    apartment.  They advised the first two
    officers that they would obtain a search warrant and instructed them to stay in
    the apartment.

[10]

About an hour later, the appellant arrived at
    the apartment.  His key would not fit the
    lock.  One of the police officers opened
    the door and the appellant was arrested.  Ms. Beaver arrived at the apartment some time later and was arrested.

[11]

A search warrant was obtained authorizing the
    police to enter the appellants apartment and search for certain specified
    items.  The police seized a number of
    items including firearms and ammunition.

THE PROVINCIAL COURT TRIAL

[12]

After a
voir
    dire
, the trial judge dismissed the appellants motion to exclude from
    evidence the guns and ammunition seized by the police.  The evidence was admitted for the purpose of
    the trial and convictions followed.

[13]

The trial judge held that the sheriffs officers
    were proceeding under the authority of a valid eviction order.  The police were initially assisting the
    sheriffs officers in what was essentially a civil matter.  The trial judge concluded that s. 8 of the
Charter
did not apply in the circumstances
    and dismissed the motion to exclude the evidence.

THE SUMMARY CONVICTION APPEAL

[14]

On the summary conviction appeal, the Crown
    conceded that the police are not exempt from the
Charter
when assisting sheriffs officers to carry out an eviction.  However, the Crown argued that there was no
    breach of s. 8.

[15]

The Superior Court judge on the summary
    conviction appeal posed the question: Was s. 8 of the
Charter
breached when the police entered the appellants private
    residence or when they opened the gun cases, then waited about six hours in
    the premises prior to the obtaining of the warrant?

[16]

The Superior Court judge approached her analysis
    on the basis that this was a warrantless search and is presumptively
    unreasonable.  She found that in the
    circumstances, the police acted reasonably throughout and the presumption of
    unreasonableness was rebutted.  At paras.
    21, 22 and 23 of her reasons, she said:

In this case, the police had been called to the
    apartment to investigate a serious safety issue.  The search of the premises did not commence,
    nor was one attempted, before the search warrant was obtained.  The police entered the apartment not for the
    purpose of a search, but in response to a call for assistance.  Upon entry, they were shown a copy of the
    eviction order.  Clearly, it was not
    feasible for them to obtain prior judicial authorization for the search.  The police actions, including the securing of
    the apartment for several hours prior to the obtaining of the warrant, were
    both subjectively and objectively reasonable in the circumstances and not, I
    find, intrusive in relation to the appellants privacy interests.  The police acted throughout pursuant to their
    common law duty to preserve the peace and prevent crime.

In my view, the factual situation here is
    exceptional and the state interest compelling such as to justify overriding the
    general prohibition against warrantless searches of a home.

The Crown has satisfied the onus of demonstrating
    that exigent circumstances justified the entry by the police, the opening of
    the gun cases and the securing of the premises as they did, prior to obtaining
    the warrant.  The concerns of the
    Sheriffs officers, the safety issue and the request for police assistance in
    securing safe transfer of the property were all found to be reasonable in the
    circumstances.

[17]

Finally, she concluded that if there was a
    breach of s. 8, the evidence would be admissible on a s. 24(2) analysis.

LEAVE TO APPEAL TO THIS COURT

[18]

The respondent does not oppose the granting of
    leave to appeal pursuant to s. 839(1) of the
Criminal Code
.  The trial
    judge considered the issues to be somewhat novel and the Superior Court judge
    described the factual situation as exceptional.  The issues appear to have importance beyond
    the appellants own case and raise a question of law concerning the proper
    application of s. 8 of the
Charter
.  I am satisfied that this case meets the test
    for leave to appeal in
R. v. R.R.
(2008),
    90 O.R. (3d) 641 (C.A.).

THE APPELLANTS POSITION ON THE APPEAL

[19]

The appellant submits that both the sheriffs
    officers and the police officers carried out unlawful searches in contravention
    of s. 8 of the
Charter
.  Sheriffs officers are state actors who
    perform their duties in these circumstances under the authority of various
    statutes including the
Tenant Protection
    Act, 1997
, S.O. 1997, c. 24, now the
Residential
    Tenancies Act
,
2006
, S.O. 2006, c.
    17, and are therefore bound by the
Charter
.

[20]

The appellant further argues that the searches
    carried out by the sheriffs officers and the police officers constituted
    searches of the appellants home and his belongings to which he had a
    subjective expectation of privacy and an objectively reasonable expectation of
    privacy.

[21]

Both the sheriffs officers and the police
    conducted searches before the police obtained a warrant, which were
    presumptively unreasonable.  The Crown
    failed to rebut the presumption of unreasonableness.

[22]

The appellant submits that the Superior Court
    judge erred in concluding that there were exigent circumstances that justified
    the police opening the gun cases before obtaining a warrant.

[23]

The fact that the police ultimately obtained a
    warrant is of no consequence.  The search
    warrant was obtained on the basis of information unlawfully obtained and cannot
    be used to legitimize the earlier illegal conduct.

[24]

The appellant also submits that the fact that
    the police remained in the premises for several hours constituted a further
    unreasonable search.

[25]

Finally, the appellant argues that both the
    trial judge and Superior Court judge erred in considering that the gun cases
    were in plain view to the sheriffs officers and to the police, which
    rendered the search and seizure of the guns reasonable,
ex post facto
.

[26]

The appellant submits that a proper analysis
    under s. 24(2) of the
Charter
pursuant to
R. v. Grant
, [2009] 2
    S.C.R. 353 leads to the exclusion of this evidence.

THE CROWNS POSITION

[27]

Counsel for the respondent Crown summarizes his
    arguments for dismissal of the appeal as follows:

(i)

The sheriffs officers entered the apartment
    pursuant to their statutory duty to enforce a facially valid eviction order,
    and thereafter conducted a lawful search of the apartment in order to provide
    the landlord with possession of the apartment free of persons and pets.  That search afforded them a plain view
    discovery of the two firearms cases.

(ii)

The police thereafter entered the apartment with
    the implied consent of the landlord, who had re-acquired possession of the apartment
    through the eviction process.  As the
    landlord had come into possession of the appellants personal possessions by
    operation of law, and the police had been called for assistance, the police had
    the implied consent of the landlord to open the two firearms cases in order to
    determine whether they posed a potential liability.

(iii)

In any event, the summary conviction appeal court
    judge correctly concluded that the admission of the impugned evidence would not
    bring the administration of justice into disrepute.

[28]

There is no issue between the parties that the
    sheriffs officers entered the apartment on the authority of a valid eviction
    order.  The Crown, therefore, submits
    that the execution of the eviction order objectively diminishes the appellants
    expectation of privacy in his apartment.  The sheriffs officers were obliged to walk through the apartment to
    ensure that it was vacant before turning the premises over to the
    landlord.  The discovery of the gun cases
    was a product of that exercise and prompted the landlord and sheriffs officers
    to call the police.

[29]

According to counsel for the Crown, the police
    officers had the implied consent of the landlord to enter what was a
    repossessed apartment.  The police entry
    was therefore not unreasonable.

[30]

Under s. 42 of the
Tenant Protection Act
, a landlord must store the personal property
    of an evicted tenant at a proximate location for a period of 48 hours to give
    the tenant an opportunity to collect his belongings.  From this, the Crown reasons that in carrying
    out his obligation to take an inventory of the evicted tenants personal
    property, he would be entitled to open the gun cases.  In these circumstances, the appellant would have
    a diminished expectation of privacy in the contents of the gun cases.

[31]

The police in opening the gun cases did so with
    the landlords implied consent.  When
    they discovered the guns, they closed up the cases and took appropriate steps
    to obtain a search warrant.

[32]

In the alternative, counsel for the Crown argues
    that the police were justified in opening the gun cases on the basis of exigent
    circumstances although he concedes that the Superior Court judges conclusion
    in this regard was perhaps generous[s].  In oral argument, counsel for the Crown said he preferred the
    description pressing circumstances rather than exigent circumstances.

[33]

Crown counsel submits that the police had been
    called to the apartment of an evicted tenant to deal with a situation involving
    what appeared to be firearms.  The
    uncertainty of what was in the gun cases raised a concern for safety.  To address the concern for safety, the police
    officers were justified in opening the cases.  When they discovered the guns, they closed the cases, secured the
    premises and took steps to obtain a search warrant.  However, the Crown concedes that before the
    police opened the cases, they did not have a basis to apply for a search
    warrant and were not then engaged in a criminal investigation.

[34]

Finally, the Crown submits that if there was a
    breach of s. 8, the evidence should not be excluded under s. 24(2) of the
Charter
.

ANALYSIS

(i)        The Law

[35]

There does not appear to be any case of this
    court or the Supreme Court of Canada directly on point.  Similarly, we were not cited any authority
    from other provincial appellate courts that addressed these circumstances.  The two most relevant cases appear to be
R. v. Mercer
(1992), 7 O.R. (3d) 9 (C.A.)
    and
R. v. Buhay
, [2003] 1 S.C.R.
    631.

[36]

In
Mercer
,
    a hotel maid entered a suite with a Do Not Disturb sign on the door for the
    purposes of cleaning the suite.  When
    looking into a closet for a missing pillow, she found a pillowcase containing a
    large sum of money.  The manager was
    called to the suite.  He observed the
    money and a brown, waxy block.  The
    police were called.  When the police
    arrived, they looked into the pillowcase and found $6,900 and what they
    believed was a block of cannabis resin.  The money and block of cannabis resin were placed back in the closet
    with the intention of getting a search warrant.  When the appellants returned to their suite, they were arrested.

[37]

Arbour J.A., writing for the court, found that there
    was a breach of s. 8.  She concluded at
    p. 15 that there was a reasonable expectation of privacy in a rented hotel
    suite:

I am not persuaded that hotel guests awareness that
    cleaning staff will enter their rooms at least daily removes the reasonable
    expectation of privacy.  Objects not left
    in plain view or stored in areas which do not require daily maintenance, such
    as inside drawers, closets, toiletry bags, briefcases and suitcases, can be
    reasonably expected to remain private despite access to the room by hotel staff
    for cleaning purposes.

[38]

The police officers justified their actions on
    the basis that they entered the suite and searched the closet with the hotel
    managers consent.  Arbour J.A. addressed
    the issue of consent as follows at p. 16:

[I]t is, in my view, more useful in the
Charter
context to determine whether, in
    the particular circumstances of a case, the consent given by a third party,
    which led to an invasion of the suspects privacy by agents of the state, was
    an acceptable substitute for the absence of prior judicial authorization.

[39]

Arbour J.A. concluded at p. 19 that there was no
    issue of urgency as follows:

There was no urgency compelling a warrantless search
    in this case.  The purpose of the entry
    by the police was to verify the hotel managers suspicion that something illegal
    had taken place in the room.  The
    respondent conceded that the police could not have obtained a search warrant
    because they had insufficient grounds.  In such a case, the avenues open to law enforcement authorities are to
    continue to investigate by methods less intrusive than a search and to seek to
    obtain a search warrant should the proper grounds upon which to do so
    materialize.

[40]

After doing a s. 24(2) analysis, the court did
    not exclude the evidence.

[41]

In
Buhay
,
    marijuana, rolled in a sleeping bag, was left in a bus terminal locker.  Security guards reported that they smelled
    the odour of marijuana emanating from the locker and advised the bus line.  A bus line employee opened the locker and the
    security guards found the marijuana.  They returned the sleeping bag and marijuana to the locker and called
    the police.  When the police arrived,
    they also smelled the marijuana and the bus employee opened the locker.  The police seized the marijuana.  The appellant, who rented the locker, was
    arrested.

[42]

By the time
Buhay
found its way to the Supreme Court, Arbour J. was on the court and wrote the
    reasons for judgment.  She held that the
    appellant had a reasonable expectation of privacy in the rented locker, stating
    at para. 21:

The appellant had control and possession of the
    lockers contents through possession of the key.  Although he did not own the locker, and
    although it remained the property of the bus companies, the appellant did pay
    the required fee to rent the locker for his exclusive use for a particular
    period of time.  Through the use of a
    key, the appellant had ability to regulate access to the locker for the rental
    period.  Moreover, the signs on the
    lockers made no mention of the possibility that they might be opened and
    searched.  The key holder would, in my
    view, have a subjective expectation of privacy and this expectation is
    objectively reasonable.  Indeed,
    generally, the purpose for renting a locker in such a location is to secure
    ones belongings against theft, damage, or even the simple curiosity of
    others.  A reasonable person would expect
    that his or her private belongings, when secured in a locker that he or she has
    paid money to rent, will be left alone, unless the contents appeared to pose a
    threat to the security of the bus depot.

[43]

The court concluded in
Buhay
that the initial search by the security guards did not
    infringe s. 8, because they were not agents of the state.  However, the opening of the locker by the
    police and the taking of the contents constituted a search and seizure  the intervention
    of the guards did not destroy the reasonable expectation of privacy.  The search was unreasonable; there were no
    exigent circumstances and the search was not authorized by law.  The plain view doctrine was inapplicable,
    as without a warrant, the police could lawfully enter the bus station but not
    the locker itself.

[44]

Arbour J. upheld the trial judges decision to
    exclude the evidence under s. 24(2) of the
Charter
.

[45]

I now turn to the case at bar.

(ii)       Did the appellant have a reasonable expectation of privacy in
    the apartment?

[46]

There was an agreement in writing between the
    appellants girlfriend (who was the tenant) and the landlord that the landlord
    would not enforce the eviction order if the rent was paid in accordance with a
    payment schedule.  The trial judge found
    that the appellant had an honest belief that the eviction order would not be
    executed.

[47]

The execution of the eviction order was the
    result of mistaken instructions given to the sheriffs officers by the
    landlord.  In these circumstances, it
    seems to me that the appellant continued to have an expectation of privacy in
    respect of the apartment, which was objectively reasonable.

[48]

In my view, the execution of the eviction order
    on the inadvertent and mistaken instructions of the landlord cannot diminish
    the expectation of privacy of the appellant in the apartment, which was his
    home.  The fact that no steps had been
    taken to rescind the eviction order does not change the analysis.  The landlord had undertaken not to take steps
    to execute the order as long as the rent was paid.

(iii)     Did the appellant have a
    reasonable expectation of privacy in the gun cases?

[49]

The appellant retained his interest and privacy
    expectations in his personal property stored in his apartment.  Assuming that the landlord were acting under
    a valid eviction order, his building superintendent was under an obligation to
    keep the appellants belongings in a nearby place for 48 hours to permit the
    appellant to claim them.  In so doing,
    the landlord was required to respect the appellants privacy interest in his
    personal property.  If the landlord had a
    duty to make an inventory of the appellants property, such a duty did not
    require the landlord to open the gun cases.  A simple notation of two gun cases would have been sufficient.

[50]

The Crown argues that
R. v. Wint
(2009), 93 O.R. (3d) 514 (C.A.), in which an inventory
    search by police of an impounded car did not violate s. 8, is analogous.  In
Wint
,
    this court held at para. 15 that for inventory searches to be meaningful, the
    police must be able to search and itemize the contents of objects such as
    purses, wallets and bags like the one observed in this case, to determine their
    contents.  In my view, the privacy
    interest in the contents of an apartment home after an eviction are different
    and much greater than that in the contents of an impounded car, and the
    custodial role of the landlord is qualitatively different than that of the
    police.  In any event the circumstances
    in this case, given the landlords breach of the agreement not to proceed with
    the eviction process, are very different.

[51]

The Superior Court judge appeared to rely on,
    and the Crown advocates, the plain view doctrine because the gun cases were
    located in a room of the apartment where they could be readily observed  thus
    reducing the expectation of privacy.  While the gun cases were in plain view, the guns were not and I do not
    agree that the plain view doctrine is of assistance.

[52]

I am satisfied that the appellant had both a
    subjective expectation and an objectively reasonable expectation of privacy in
    the gun cases.

[53]

I now turn to the question of whether the
    conduct of either the sheriffs officers or police officers constituted a
    breach of the appellants s. 8 rights.

(iv)      The Sheriffs Officers

[54]

I agree with the submissions of the appellant
    that the sheriffs officers are state actors and their conduct is subject to
Charter
scrutiny.  That said, I do not find anything in their
    conduct which constitutes a breach of the appellants s. 8 rights.  The sheriffs officers were carrying out
    their statutory duties pursuant to an eviction order that was valid on its face.  Their role was to return the vacant premises
    to the landlord and it was within their authority to walk through the apartment
    and to check for people or animals.  The
    sheriffs officers were not engaged in a criminal investigation and, more
    importantly, they did not open the gun cases.  There was no unlawful search by the sheriffs officers.

(v)       The Police Officers

[55]

The trial judge and the Superior Court judge
    found justification for the conduct of the police in s. 141(2) of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43:

A sheriff who believes that the execution of an
    order may give rise to a breach of the peace may require a police officer to
    accompany the sheriff and assist in the execution of the order.

The trial judge said that [t]he police had a statutory
    obligation to assist the sheriff in matters concerning the potential breach of
    the peace, which includes public safety.  The Superior Court judge accepted this conclusion.  Also, the Superior Court judge found that,
    exigent circumstances justified the entry by the police, the opening of the
    gun cases and the securing of the premises as they did, prior to obtaining the
    warrant.

[56]

I disagree.  There were no exigent circumstances and, in particular, no threat of a
    breach of the peace.  There was no
    serious safety issue.  When the sheriffs
    officers and later the police arrived, neither the appellant nor his girlfriend
    were in the apartment.  Once the locks
    had been changed, the appellant could not access the gun cases.  The safety concern, if any, was not genuine
    and immediate.  The safety concern of the
    sheriffs officers, as found by the trial judge, was sufficient to explain why
    the police were consulted, but was not grounds for the police to open the
    cases.  To the extent that the police
    were acting pursuant to their common law duty to preserve the peace and prevent
    crime, in the circumstances  particularly the absence of any urgency  this
    common law duty does not excuse the police from their obligations under the
Charter
.

[57]

The landlord could not authorize the police to
    open the gun cases.  Neither express nor
    implied consent of the landlord justified the police in opening the gun
    cases.  The landlord could allow the
    police to enter the apartment and look around and while the gun cases were in
    plain view, the contents of the gun cases were not.  As indicated, the Crown concedes that, at
    that point, the police had no basis to obtain a search warrant.  The distinction has to be made between the
    right to be present and the right to search.  The police had the former, but not the latter.  I repeat what Arbour J. said in
Mercer
at p. 19:

The respondent conceded that the police could not
    have obtained a search warrant because they had insufficient grounds.  In such a case, the avenues open to law
    enforcement authorities are to continue to investigate by methods less
    intrusive than a search and to seek to obtain a search warrant should the
    proper grounds upon which to do so materialize.

[58]

I conclude that the conduct of the police
    officers in opening the gun cases constituted a breach of s. 8.

[59]

The appellant also argues that the police
    remaining in the apartment for several hours pending the arrival of the warrant
    was a further search and ongoing breach.  I do not agree.  The mere presence
    of the police in the apartment, including any plain view observations of the
    appellants other belongings, did not constitute a breach of s. 8.

(vi)      Should the evidence be
    excluded under s. 24(2) of the
Charter
?

[60]

The first factor for consideration, in
    accordance with the Supreme Courts direction in
Grant
, is the seriousness of the
Charter
-infringing state conduct.  The Crown submits that the police acted in good faith.  However, the fact remains that the appellant
    was subject to the entry to his home by police, at the behest of a landlord who
    had agreed not to engage the eviction process.  While that conduct cannot be laid at the feet of either the sheriffs
    officers or the police, the subsequent conduct of searching the gun cases by
    the police was without any lawful authority.  The police did not have the basis for obtaining a search warrant before
    opening the gun cases and there were simply no exigent or pressing
    circumstances to justify their acting as they did.  In my view, this conduct weighs in favour of
    excluding the evidence.

[61]

The second
Grant
factor is the impact on the
Charter
protected interests of the appellant.  The
    appellant enjoys a very high expectation of privacy in his home and in his
    personal property kept in his home.  The
    second factor favours exclusion.

[62]

The final
Grant
factor is societys interest in an adjudication on the merits.  The evidence here is both reliable and
    critical to the prosecutions case.  Counsel for the Crown appropriately argues that [g]enerally speaking,
    firearms related offences are serious.  While this court has often clearly stated that gun crime is very
    serious, it is usually in reference to gun violence.  Gun safety is clearly very important, but the
    offences of careless storage of firearms and ammunition are far less serious
    than violent crimes involving guns.  The
    less serious character of these offences is reflected in the appellants
    sentence, which was a suspended sentence and twelve months probation.  That said, the third factor does favour the
    admission of the evidence.

[63]

It is then necessary to balance the three
    factors  two in favour of exclusion and one in opposition to exclusion.  I conclude that the privacy interest of the
    appellant in the circumstances of this case is paramount and I would exclude
    the evidence.

DISPOSITION

[64]

For the above reasons, I would grant leave to
    appeal, allow the appeal and set aside the convictions and enter verdicts of
    not guilty on each of the charges.

RELEASED:

JL                                                    Robert
    P. Armstrong J.A.

JUL 12 2011                                 I
    agree John Laskin J.A.

I
    agree K. Feldman J.A.


